By Alan Graner
Remember Mel B. of Huntsville Alabama? Or Dorothy G. of Buffalo, New York?
Over the years Mel, Dorothy and their ilk “endorsed” all sorts of products and services, from never-run mascara to miracle pills that cure arthritis, from 5-minutes-a-day exercise machines to psychologists’ secrets for making your children behave.
Unfortunately, some of these products and services were, shall we say, slightly dubious, but Mel and Dorothy swore by them.
So it is with great sadness we say goodbye Mel and Dorothy because they no longer exist (assuming they ever did).
The Federal Trade Commission killed them.
The FTC defines consumer endorsements
On December 1, 2009, the Federal Trade Commission (FTC) published its Guides Concerning the use of Endorsements and Testimonials in Advertising, its first update since the 1980 Guides.
However, these are guides, not laws. It’s up to the FTC to determine what an endorsement is and whether it violates the Guides.
According to Section 255.2 of the Guide:
(a) If an ad includes endorsements by one or more consumers, the product or services they endorse must work as claimed. The advertiser must be able to back those claims with adequate substantiation, evidence and/or reports.
(b) If an ad features the experiences of one or more consumers on a key attribute of the product or service, it must represent what an average consumer can expect to obtain. Again, the advertiser must substantiate those claims.
Let’s say you advertise a weight loss program. One person lost 150 pounds, another 120 pounds, a third 95 pounds…and everybody else lost about 10 pounds. In the past you’d feature the three big weight losers along with the disclaimer (if you were honest) *Results not typical. Not anymore. Now you have to disclose the average weight loss that can reasonably be expected.
255.2 (b) continues: If the advertiser can’t substantiate the endorser’s experience is typical, the ad must clearly and conspicuously disclose the generally expected performance in the depicted circumstances and back the claim with adequate substantiation.
An ad features a woman who claims she reduced her weight from 250 to 140 pounds in six months by drinking the advertiser’s product, eating only raw vegetables and regularly exercising six hours at the gym. Since this represents an actual experience and is typical for anyone following the same regimen, the ad is legitimate.
However, if she said she lost the weight by drinking the product along with diet and exercise—without detailing her vigorous efforts—the ad can considered deceptive.
If you run an affiliate program and one person puts forth an extraordinary effort to earn $2,500 in one month while most everyone else earns less than $100, you can’t feature the big earner unless you detail exactly what s/he did to achieve that goal, thereby indicating the $250,000 may be typical for such a heroic effort but not for ordinary efforts.
Moreover, if you run an affiliate program you may be liable if some of your affiliates make such exaggerated claims. Check with your lawyer.
(c) If the ad claims the endorsers are “actual consumers,” they better be. If not, that fact must be conspicuously disclosed.
For example, a TV spot featured a man dressed as a doctor who stated: “I’m not a doctor, but I play one on television.” This is legit.
What’s your experience with consumer endorsements?
Image: Vintage Ad Browser
Alan Graner is Chief Creative Officer at Daly-Swartz Public Relations, an Orange County, CA marketing communications firm. For honest endorsements and testimonials that don’t violate FTC Guides, email Jeffrey Swartz at jeffreyswartz@dsprel.com.
